Abstract

Citations (1)

Using the URL or DOI link below will
ensure access to this page indefinitely

Based on your IP address, your paper is being delivered by:

New York, USA

Processing request.

Illinois, USA

Processing request.

Brussels, Belgium

Processing request.

Seoul, Korea

Processing request.

California, USA

Processing request.

If you have any problems downloading this paper,please click on another Download Location above, or view our FAQFile name: SSRN-id1467013. ; Size: 2003K

You will receive a perfect bound, 8.5 x 11 inch, black and white printed copy of this PDF document with a glossy color cover. Currently shipping to U.S. addresses only. Your order will ship within 3 business days. For more details, view our FAQ.

Quantity:Total Price = $9.99 plus shipping (U.S. Only)

If you have any problems with this purchase, please contact us for assistance by email: Support@SSRN.com or by phone: 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

Brigitte M. Bodenheimer Memorial Lecture on the Family: Inventing Family Law

Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley

1999

University of California Davis Law Review, Vol. 32, p. 855, 1999

Abstract:

This essay discusses the problem of overbroad discretion throughout family law in connection with the drafting of the American Law Institute’s Principles of the Law of Family Dissolution. Nearly everywhere, both child custody and alimony are within the realm of trial court discretion. The dominant custody standard, 'best-interests-of-the-child,' effectively leaves each trial judge free to make the important value choices that necessarily underlie a custody determination. As for alimony, the dominant approach directs the court to set a maintenance order it believes 'just.' Except for a handful of equal division states, where allocation of marital property is governed by a very mechanical rule, many common law equitable distribution states reject even a presumption of equal division, and instead insist on a discretionary allocation of property by a trial court. The problem with a discretionary system is that judges 'apply different rules as often as they face different facts.' The desire to customize every result to a case's particular facts leads to an unjustified disparity in the treatment of like cases.

We have at times had clear rules. However, the traditional rules relied upon by the common law reflect values we no longer share. In drafting the American Law Institute’s Principles of the Law of Family Dissolution, the drafters began with two thoughts in mind: (1) there is no avoiding the law's choice of values; and (2) the values should be contained in the rules, not obscured in discretion, or in illusory inquiries into parties' own choices during their marriage.